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Office of the General Counsel

Date: April 15, 1998
Matter of: [xxx]
File Number: S000958

OPM Contact: Murray M. Meeker

The claimant, a criminal investigator with [agency] in [state]
claims that he is entitled to 13.25 hours of regular overtime and 1
hour of availability pay for time that he spent traveling to attend
employment-related training. For the reasons discussed herein, the
claim is denied.

The agency reported that as a criminal investigator, the
claimant is required to participate in various types of
employment-related training; that the 36 hour course in question
began in [state] on Monday, May 18, 1997, at 8:00 am; that the
course concluded on Friday, May 22, 1997, at noon; that the
claimant claimed 8 hours of regular overtime for time spent
traveling from [state] to [state] and that the claimant also
claimed 5.25 hours of regular overtime and 1 hour of availability
pay credit for the return trip to [state] on May 23, 1997.

The agency reported further that the claimant had specifically
requested that he be authorized to use a government owned vehicle
(GOV) to transport himself to [state], and that while the
claimant's request had been granted, the claimant had been advised
by his supervisor that for time and attendance purposes, the
claimant would not be credited with any excess travel time. More
specifically, the claimant was advised that he would not be
entitled to any availability hours for time spent traveling to
[state] on May 17, 1997, and that for the return trip, the claimant
would only be credited with availability hours for those hours that
would have been necessary for the claimant to fly back to
[state].

The claimant attended the training as scheduled. The agency's
approved time and attendance sheets recorded that the claimant
received 40 hours of training. The claimant was credited with 1
hour of availability time for the period on Friday, May 23, 1997,
from 4:30 pm to 5:30 pm, because the claimant would have arrived in
[state] at approximately 5:30 pm if he had traveled by
airplane.

The claimant asserts that he is entitled to regular overtime
under 5 U.S.C. 5542(d)(1)(B) which provides that any criminal
investigator who is paid availability pay under section 5545a shall
be compensated under section 5542(a) for overtime
work which is scheduled in advance of the administrative
workweek on a day outside the investigator's basic 40 hour
workweek. However, the overtime work that is
compensable as regular overtime under section 5542(d)(1)(B) is only
work that would otherwise qualify as overtime work
under section 5542. See 5 U.S.C. 5545a(c).

In determining entitlement to overtime compensation under title
5, United States Code, time spent in a travel status away from the
employee's official duty station is only considered to be hours of
employment where:

(A) the time spent is within the days and hours of the regularly
scheduled administrative workweek of the employee, including
regularly scheduled overtime hours; or

(B) the travel (i) involves the performance of work while
traveling, (ii) is incident to travel that involves the performance
of work while traveling, (iii) is carried out under arduous
conditions, or (iv) results from an event which could not be
scheduled or controlled administratively, including travel by an
employee to such an event and the return of such employee from such
event to his or her official-duty station.

5 U.S.C. 5542(b)(2).

None of the statutory exceptions applies to the claimant. The
travel time claimed was not within the days and hours of the
claimant's regularly scheduled administrative workweek and it is
well established that travel time outside of regular duty hours is
not considered hours of employment and is not compensable.
SeeBarth v. United States, 568 F.2d
1329 (Ct. Cl. 1978), as cited in Department of Labor,
B-193127, May 31, 1979. The claimant's travel did not involve the
performance of work. SeeJohn C. Dudkiewicz,
B-226191.2, January 4, 1989; Gerald A. Mendiola, B-210722,
Dec. 27, 1983; and Charles C. Mills, B-198771, Dec. 10,
1980. The claimant's travel was not carried out under arduous
conditions and the travel did not result from an event that could
not be scheduled or controlled administratively. SeeDepartment of Labor, supra (where training is
provided by a Government agency, the training will not be
considered to be administratively uncontrollable).

Thus, the claimant is unable to establish that his travel time
constituted hours of employment under section 5542(b)(2) or that
his travel time constituted overtime work under sections 5542(a)
and 5542(d)(1)(B). Availability pay that is claimed on non-regular
workdays must involve actual work. 5 U.S.C. 5545a(d)(3).

Accordingly, the employee's claim for regular overtime and
availability pay is denied. This settlement is final. No further
administrative review is available within OPM. Nothing in this
settlement limits the employee's right to bring an action in an
appropriate United States Court.